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Northern Rocky Mountains gray wolf
Restoring the Gray Wolf
The Missoulian, July 26, 2011

Wolf advocates challenge delisting at Missoula hearing
By Rob Chaney

The battle over Rocky Mountain gray wolves has become a constitutional clash between the U.S. Congress and the nation's judicial system.

"This case has very little to do with wolves or the Endangered Species Act," wolf advocates attorney Jay Tutchton told U.S. District Judge Donald Molloy on Tuesday. "It has to do with our constitutional framework and if we're going to use it to protect our individual liberties."

Four environmental groups are challenging a congressional rider authored by U.S. Sen. Jon Tester, D-Mont., and U.S. Rep. Mike Simpson, R-Idaho, which ordered the Rocky Mountain gray wolf removed from federal protection and blocked judicial review of that action. The measure passed in an April appropriations bill without any committee hearings or debate.

In 2009, a U.S. Fish and Wildlife rule took wolves off the endangered species list, where they had been protected since 1974. That change put wolves under state management in Montana and Idaho. Those states allowed wolf hunting seasons that year.

Molloy found that rule illegal in a 2010 decision, and ordered wolves back under federal supervision. The rider negated Molloy's decision, and the environmental groups sued to restore it.

The U.S. Supreme Court has held that Congress can't tell the courts how to decide a case unless it explicitly changes the law at the heart of the matter.

"Once they've done that, the courts are out of the picture until the next case comes along," Molloy said on Tuesday. But he also directly asked the U.S. Department of Justice attorneys: "What section of the Endangered Species Act was changed?"

Government lawyer Andrea Gelatt said Congress "carved a very narrow hole" in the Endangered Species Act by ordering the U.S. Fish and Wildlife Service to delist wolves in Montana and Idaho, according to its 2009 rule. That congressional rider didn't take a position on the wolf case, she said. It just told the agency to do its job.

That doesn't give a judge or citizen any idea what was changed or how the rider might affect other animals, the pro-wolf side countered.

"The government is asking us to interpret some kind of mysterious language," pro-wolf attorney Amy Atwood told Molloy. The federal government and Montana state officials don't agree on what the rider did, she said, even though they're on the same side.

Molloy then asked what happened to his opinion that the Fish and Wildlife Service rule was illegal. The Endangered Species Act allowed animals to be delisted by species, subspecies or distinct population segment (such as the wolves in the Rocky Mountains, but not the wolves around the Great Lakes).

Molloy ruled that when the federal government ordered Rocky Mountain gray wolves delisted in Montana and Idaho but not Wyoming, it went below that third threshold.

Both sides agreed the congressional rider didn't change Molloy's ruling, which created another conundrum. The government is challenging Molloy's 2010 decision before the 9th U.S. Circuit Court of Appeals. How could Gelatt say Molloy's ruling was wrong on appeal but correct in Tuesday's hearing, he asked.

And how would anyone in the future oversee wolf management if the rider prohibits further court review?

"What's the necessity of saying we've changed the law but you can't go to court to test if you've changed the law?" Molloy asked. "We're telling the agency to go ahead and do what the court said was illegal."

Gelatt compared the situation to a 2001 fight over where to put a World War II memorial in Washington, D.C. Congress passed a law ordering the memorial be built next to the Washington Monument without further court challenge, and the federal appeals court upheld it.

A decision in this case could affect other lawsuits. If Molloy rules the congressional rider is legal, he may essentially overrule himself and make the 9th Circuit appeal moot. That could affect another case where wolf advocates are challenging the Fish and Wildlife Service's ability to authorize killing endangered species under a "10-J" exemption. Before the wolf was delisted, Montana and Idaho wildlife managers sought 10-J hunts to reduce wolf packs in the Bitterroot Mountains where elk herds were collapsing.

Meanwhile, both Montana and Idaho have scheduled new wolf hunts for this fall. Wyoming authorities are still negotiating with the Fish and Wildlife Service on a plan that would allow its wolves to be delisted. Wolves are also off the Endangered Species List in Washington, Oregon and Utah. About 1,700 wolves live in Montana, Idaho and Wyoming, while less than a few dozen are reported to roam the other three states combined.

Neither the wolf advocates nor the federal government got to rebut the other sides' argument in Tuesday's hearing. Both asked Molloy to throw the other side's case out of court. About 35 people attended the hearing.

"We're finished a lot faster than I thought we would be," Molloy told the courtroom. "I'll try to get something out very shortly."

Copyright 2011 missoulian.com.

This article originally appeared here.

Photo © Paul S. Hamilton